Rule v International Association of Bridge, Structural, and Ornamental Ironworkers Appellants Reply Brief
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March 3, 1977

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Brief Collection, LDF Court Filings. Rule v International Association of Bridge, Structural, and Ornamental Ironworkers Appellants Reply Brief, 1977. 23bd4a5b-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0d6ac690-39a1-4101-b884-d0c059002f5b/rule-v-international-association-of-bridge-structural-and-ornamental-ironworkers-appellants-reply-brief. Accessed July 09, 2025.
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WITH CITATIONS TO PRINTED APPENDIX IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT NO., 7.6-194 5 RONALD RULE, et al., Appellants, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, AND ORNAMENTAL IRONWORKERS, LOCAL UNION NO. 396, et al., Appellees. On Appeal From The United States District Court For The Eastern District of Missouri Eastern Division APPELLANTS' REPLY BRIEF ■— ■■ ■i.'.a .t ".1 ■ ' .r .T .i ; . i : : ■ i ■■■j . ■ -■■■— ■■ r j . ’a ,i . „ r i.— :1 ' a : 1, .. J.. l ■ ■ i LOUIS GILDEN Gilden & Dodson 722 Chestnut Street St. Louis, Missouri 63101 JACK GREENBERG 0. PETER SHERWOOD 10 Columbus Circle New York, New York 10019 ATTORNEYS FOR APPELLANTS INDEX Table of Authorities ..................................... ii I. STATEMENT OF FACTS A. Introduction ..................................... 1 B. Current Effect Of The Consent Decree ........... 2 C. The Right To Solicit ................................. 3 D. Union Control Of Employment In The Trade ...... 4 II. THE DISTRICT COURT ERRED IN DECERTIFYING THE CLASS .............................................. 5 III. THE DISTRICT COURT ERRED IN REFUSING TO ADMIT PLAINTIFFS' EXHIBIT 26A ............................... 10 IV. THE DISTRICT COURT ERRED IN REFUSING TO CONSIDER CERTAIN EVIDENCE CONTAINED IN THE GOVERNMENT'S CASE ................................................... 11 A. Evidence From The Government's Case Is Admissible Under Rules 26(d) and 42(a) F.R.Civ.P......................................... 12 B. Evidence From The Government's Case Is Admissible Under Rule 801(d)(2), Federal Rules of Evidence ......................... 10 V. THE DISTRICT COURTS' REFUSAL TO FIND THE DEFENDANTS TO HAVE VIOLATED THE TITLE VII AND SECTION 1981 RIGHTS OF THE NAMED PLAINTIFFS WAS E R R O R .................................. 19 A. George Coe ....................................... 22 B. Lonnie R. Vanderson .................................. 22 C. Johnnie I. Brown ......................... 23 D. Willie West ...................................... 24 Page i Page VI. DEFENDANTS VIOLATION OF THE CONCILIATION AGREEMENT ......................................... 26 VII. CONCLUSION........................................ 26 Certificate of Service ................................. 27 TABLE OF AUTHORITIES Cases Afro-American Patrolman's League v. Duck, 503 F.2d 294 (6th Cir. 1974) 6 Albemarle Paper Co. v. Moody, 422 U.S. 405, (1975) ............................................... 7,9,26 Arkansas Educational Association v. Board of Education, 446 F.2d 763 (8th Cir. 1971) 6 Arney v. Geo. A. Hormel & Co., 53 F.R.D. 179 (D.C. Minn. 1971) .................................... 11 Baldwin-Montrose Chemical Co. v. Rothberg, 37 F.R.D. 354 (S.D. N.Y. 1967) ................................ 13,14,15 Barnett v. W. T. Grant Co., 518 F.2d 543 (4th Cir. 1975) 6 ii Page Carey v. Greyhound Bus Co., 500 F.2d 1372, (5th Cir. 1975) ...................................... 6, 9 Cromwell v. County of Sac, 94 U.S. 351 ........... 25 In Re Cessna Air Distrib. Antitrust Litigation, 518 F.2d 213 (8th Cir. 1975) .................. 8 Cypress v. Newport News General & Nonsectarian Hospital Assn., 375 F.2d 648, (4th Cir. 1967) .. 6 Demarco v. Eden, 390 F.2d 836 (2nd Cir. 1968) .... 6 Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, (D.C.S.C. 1974) ................... 11 Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974) ................................ 10, 23, 24 Fullerform Continuous Pipe Corp. v. American Pipe Construction Co., 44 F.R.D. 453 (D. Ariz. 1968) ........................................... 13, 15 Grogan v. American Brands, Inc., 70 F.R.D. 579, (M.D.N.C. 1976) ................................ 8 Guerrino v. Ohio Casualty Insurance Co., 423 F.2d 419 (3rd Cir. 1970) ...... ..................... 15 Ikerd v. Lapworth, 435 F.2d 197 (7th Cir. 1970) ... 13, 15 In Re International House of Pancakes Franchise Litigation, 536 F.2d 261 (8th Cir. 1976) ..... 8 Manning v. International Union, 466 F.2d 812 (6th Cir. 1972), cert, denied 410 U.S. 946 ......... 10 Marquez v. Omaha District Sales Office, Ford Div., 440 F.2d 1157 (8th Cir. 1971) ................. 19, 24 Miller v. Meinhard Commercial Corp., 462 F.2d 358 (5th Cir. 1972) ................................ 25 iii Napier v. Bossard, 102 F.2d 467 (2nd Cir. 1939) ... 18 Parham v. Southwestern Bell Telephone Co., 433 F .2d, 421 (8th Cir. 1970) ...................... 7, 19, 22, 24 Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) ................................ 23 Philadelphia Housing Authority et al., v. American R & S Corp., 323 F. Supp. 364 (E.D. Penn., 1970) ........................................... 9 Reed v. Arlington Hotel Co., Inc., 476 F.2d 721 (8th Cir. 1973) ................................ 7 Resendis v. Lee Way Motor Freight, Inc., 505 F.2d 69 (5th Cir. 1974) .......................... 19 Rodriquez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1975) 10 Sagers v. Yellow Freight System., Inc. 529 F.2d 721 (5th Cir. 1976) 19 Salsman v. Witt, 466 F.2d 76 (10th Cir. 1972) .... 18 Shulman v. Ritzenberg, 47 F.R.D. 202 (D.D.C. 1969). 6 Sylgab Steel & Wire Corp. v. Imoco-Gateway Corp., 62 F.R.D. 454 (N.D. 111. 1974) 11 Underwater Storage, Inc. v. United States Rubber Co. 314 F. Supp. 546 (D.D.C. 1970) 11 United States v. Allegheny-Ludlum Industries, Inc. 517 F .2d *826, (5th Cir. 1975) ................. 25 United States v. Burr, 25 F. Cas. 30, (C.C. Va. 1807) ........................................... 7 United States v. Empire Gas Corp., 393 F. Supp. 903 (W.D. Mo.., 1975) 18 Page iv Page United States v. Hayes International Corp., 456 F . 2d 112 (5th Cir. 1972) ............................ 19 Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3rd Cir. 1975) ................................. 9, 10 Wilcox v. Commerce Bank, 474 F.2d 336 (10th Cir. 1973) ............................................ .... 9, 10 Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975) ...................................... 7 STATUTES AND RULES Federal Rules of Civil Procedure Rule 23 ........................................... 6, 7, 8, 9 Rule 26(D) ........................................ 12, 15, 16, 18 Rule 32 (A) (3) ...................................... 16 Rule 42(A) ......................................... 12, 13, 15 16, 18 Federal Rules of Evidence Rule 801 (D) 28 U.S.C.A............................ 16, 17, 18 Title vll of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq................................ 25 OTHER AUTHORITIES McCormick On Evidence §257, p. 201 .................... 12 McCormick On Evidence §257, p. 261 .................... 13 5 Wigmore, Evidence, 3d Ed 1940 § 1388 ................ 13 v Page See Weinsteins Evidence, 9801 (D)(2) [01] at 1 801-115 ......................................... 17 McCormick On Evidence, §262, p. 629 ................... 17 Notes on Advisory Committee On Proposed Rules, Fed. Rules Evid. , Rule 801 (D) (2), 28 U.S.C.A............ 17 vi m THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT NO. 76-1945 RONALD RULE, et al., Appellan ts, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, AND ORNAMENTAL IRONWORKERS, LOCAL UNION NO. 396, et al., Appellees. On Appeal From The United States District Court For The Eastern District Of Missouri Eastern Division APPELLANTS' REPLY BRIEF ........ 1 asa— a » *~— i ■ — * n — 1 11 ■ ■ ■■- — ................ ■ ■■ ■< ■< cm ss— — 1 — 1 . A . Introduction Plaintiffs-appellants Ronald Rule, et al., hereby reply to the brief filed by the defendants-appellees in this case. While the defendants criticize the style of plaintiffs statement of the facts there is little in their brief that either "supplement(s)" or point to "correction of . . . errors and inaccuracies contained in plaintiffs statement of the facts." (Defendants Brief at p. 5). To the contrary defendants largely re-state facts set forth in plain tiffs brief, excluding many of the material facts carefully documen ted by plaintiffs in their opening brief. We address here the few assertions of alleged inaccuracies to which the defendants have referred. B . Current Effect Of The Consent Decree At page 3 of their brief the defendants state that "the consent decree. . . remains in effect between all parties. . ." Nothing in this record to~date indicates that the requirements of the Consent Decree in No. 71-C-559 (2) would normally be effective 1/ beyond November 9, 1976. The defendants representation to this Court that the Consent decree is still in effect does suggest that they have failed^to achieve the goals set forth in paragraph 2 of that court order. At page 11 of their brief 1/ Paragraph 39 of the Consent Decree states: Jurisdiction: 39. The Court shall retain jurisdiction over this action for three (3) years from the date of its entry or until such time as the Defendants have achieved the objective of this Decree, as set forth in paragraph 2 above. The Defendants may apply to the Court for termination of this Decree at any time prior to the end of the three (3) year period and such a termination may be granted upon a showing that the objective of this Decree has been met; the Plaintiff will be allowed thirty (30) days to prepare its response to any such application for termination. In the event that Defendants fail to comply with any provision of this Decree, Plaintiff United States shall notify Defendants, in writing, of such noncompliance. If the Defendants have not, within fifteen (15) days after receipt of such notification, remedied such noncompliance, United States may apply to this Court for an order to show cause why the provisions of this Decree should not be specifically enforced. (A. ). 2/ As of the time of trial in April, 1975, the defendants had not achieved compliance with that paragraph of the Consent Decree. In 1974 the Minority Training Program accepted only 13 of the 20 train ees called for under paragraph 13 of the Consent Decree. (February 21, 1975 report to EEOC in Px-2) (A. ). 2 defendants intimate that the contractors have joined with the union and have adopted the referral procedures set forth in the Consent Decree. If this is the case, plaintiffs applaud these efforts, albeit belated, to achieve equal employment opportunity in the St. Louis ironwork trade. C. The Right to Solicit At pages 10-11 of their brief defendants state: Ninety percent or more of all employment in the ironwork industry within the local 396 jurisdiction is filled by direct hire without referral by the union. Prior to 1972 there was no agreement between local 396 and the contractors regarding referral of applicants for employment. There was no referral system and all employees in the ironwork trade could and did solicit their own employment directly from contractors. Plaintiffs have forthrightly stated that work in the ironwork trade is obtained primarily by direct hire (Pi. Br. p. 17). Prior to and since 1972 contractors would call the union hall for referrals when they were unable to find a full complement of ironworkers by direct hire. Ibid. (See also Tr. 533-34) (A. 997) . Thus even though provision for referrals by the union was not incorporated into the collective bargaining agreements until 1972, the practice of referring ironworkers from the union hall was not new (e.g. See Tr. 682, Quick depo. at p. 19 and McGowan depo. at p. 89) (A.1145,43 0 1 and406 ) . 3/ 3 / The contractors are not parties to the Consent Decree. 3 There is no dispute that permitmen did solicit work prior to 1972. Whether or not they could do so legally is in dispute. (See PX-52 at pp. 8-9, Tr. 200, 682 and Quick depo. at pp. 19-20) (A.251 ,6 6 4,1145, and430) . There is no dispute that ironworkers having less than 6,000 hours of work in the trade prior to the date of the 1972 letter agreement were prohibited by that agree ment from soliciting work (See Johnson depo. in Government Case at pp. 52-53) (A. 424a) and that this new requirement had a major impact on the employment opportunities of black ironworkers, 4/ including plaintiff Rule. Further there is no dispute that prior to 1972 journeyman ironworkers were referred for work before permitmen. (See Johnson depo. in Government Case at p. 55 and McGowan depo. at p. 108) (A.425,407). D . Union Control of Employment in the Trade At footnote 2 the defendants state: Further, there is no evidence to support plaintiffs' statements on pages 5 and 6 of its brief that Local 396 exercises 'exclusive control' of the ironworker trade . . . Prior to the institution of the referral system in 1972 no contractor was required to look first to the union for workmen. Plaintiffs' asser tions are unfounded and totally erroneous and mis leading. Plaintiffs do not claim that Local 396 exercises exclusive control of the ironwork trade. Plaintiffs do properly assert that the Local 396 exercises, both prior to and after 1972, virtually exclusive control of employment in the construction 4/ In fact William Johnson, the Union's business agent admitted that the purpose of the 1972 Letter Agreement (DX-E) (A. 273) was to institute a seniority system to protect the older, all- white ironworkers (See Johnson depo. at p. 87) (A. n o ) . - 4 - ironwork trade. As plaintiffs describe fully at pages 6-9 of their brief that control is exercised through its authority to admit journeymen, issue permits, indenture apprentices and 5/ enroll trainees. Both prior to and after the institution of the referral system in 1972 any contractor having a collective bargaining agreement with Local 396 who hired an ironworker who was not duly indentured in the Local 396 joint Apprenticeship Program or who did not possess a Local 396 journeyman's card or a service dues receipt issued by Local 396, would be required to terminate that employee on request of the union (See e.g. PX-52 at pp. 4 and 8-9) (A. 250 , and 251 ). In short, every contractor having a collective bargaining agreement with Local 396 was (and is) required to hire Union approved workmen only, except where the Union fails to supply them after reason able notice (See e.g. PX-52 at p. 4) . (A. 250 ) . II THE DISTRICT COURT ERRED IN DECERTIFYING THE CLASS The defendants contend that the district court did not abuse its discretion when it decertified the class herein. It appears that the district court decertified the class on the basis of the number of affirmative responses to the 460 notices mailed. To the extent that the district court based 5/ The Union's authority over apprentices and trainees is shared, at least nominally, with contractor representatives. -5- its decision to decertify the class merely on the numbers of responses returned, it failed to properly apply the applicable law. The test of whether or not a class is so numerous that joinder of all members is impracticable involves more than a purely quantitative measurement. See e.g. Shulman v. Ritzenberg, 47 F.R.D. 202 (D.D.C. 1969); Demarco v. Eden, 390 F.2d 845 (2d Cir. 1968) . Clearly, no specific number of class members is needed to maintain a class action under Rule 23. See Cypress v. Newport News General & Nonsectarian Hospital Assn.. 375 F.2d 648, 653 (4th Cir. 1967). Class actions consisting of as few as 35, 23 or even 18 persons have been upheld. See Arkansas Educational Assn, v. Bd. of Education, 446 F.2d, 763 (8th Cir. 1971); Afro-American Patrolman's League v. Duck. 503 F.2d 294 (6th Cir. 1974); and Cypress v. Newport News General & Nonsectarian Hospital Assn., supra. The district court's decertification of the class on the basis of failure of plaintiffs to meet the numerosity requirement of Rule 23(a), F.R. Civ. P., necessarily implies a finding that joinder is practicable. Cf. Barnett v. W.T. Grant Co., 518 F.2d 543 547 (4th Cir. 1975). Here the district court did not consider the impracticability of joinder of the minimum of 323 remaining 6/ class members. Assuming the district court did-properly apply the applicable law, its decision to decertify the class constitutes a clear abuse of discretion. See Carey v. Greyhound Bus Co., 6/ Indeed the district court limited the number of class members that could be joined as plaintiffs to the 17 individuals who affirmatively requested inclusion. The impracticability of joining these few class members as plaintiffs is fully described in plaintiffs' main brief at pp. 38-39. It appears that the defendants recognize the impracticability of joinder in this case given their curious silence on this question. 6 500 F.2d 1372, 1380 (5th Cir. 1975). Rule 23(c) (1) vests the district court with the discretion to modify the class definition and to decertify the class at any time before a decision on the merits. That discretion is not left to the district court's "inclination but to its judgment and its judgment is to be guided by sound legal principles." See Albemarle Paper Co. v. Moody, '422 U.S. 405, 416 (1975) quoting United States v. Burr, 25 F. Cas. 30, 35 (C.C. Va. 1807). That a mere thirteen (13%) of those who received notices requested exclusion is not a basis for decertification of the class, particularly in the circumstances of this case where the notice expressly advised class members of their inclusion in the class if they chose not to return it. The courts have long recognized that in exercising its discretion under Rule 23(c) (1), F.R. Civ. P., the district court should read the requirements of Rule 23 (a) liberally in favor of class certification. This rule applies even more so in the context of an action brought by Title VII. See e.g. Reed v. Arlington Hotel Co., Inc., 476 F.2d 721, 723 (8th Cir. 1973) and Parham v. Southwestern Bell Telephone Co., 433 F.2d 421. 428 (8th Cir. 1970). One of the very cases the defendants cite supports this proposition: Rule 23 should be liberally construed to effectuate the remedial policy of Title VII since the conduct . . . proscribed is discrimination against a class characteristic. Wright v. Stone Container Corp.. 524 F.2d 1058, 1061 (8th Cir. 1975). In Wright this court upheld the district court's denial of class certification but in doing so it stressed the "peculiar circumstances" of that case. This Court noted not only the plaintiffs' failure, after adequate opportunity for discovery, 7 to identify any person who was subjected to the same or similar discriminatory treatment but also that he himself was not an adequate•class representative because he had not applied and was not qualified for the job in question. 524 F .2d at 1062. Here plaintiff Rule identified literally scores of blacks who were denied referral, admission to JAC and the MTP, were 6/ affected by the 6000 hour requirement, etc. . . (See Plain tiff's Statement of Facts). Further Rule and the other plain tiffs were directly affected by the very practices complained of. (See PI. Br. at pp. 43-64.) In Grogan v. American Brands, Inc. 70 F.R.D. 579, 581 (M.D. N.C. 1976), the only other Title VII case cited by the defendant, the district court did certify the class conditionally even though the record at that time consisted of bare allegations. A brief discussion of the other cases cited by defendant in support of a wide Rule 23 discretionary power dispel the notion of their applicability to this case. The case of In Re Cessna Air Distrib. Antitrust Litigation, 518 F.2d 213 (8th Cir., 1975), simply states that an interlocutory order granting class standing in an action brought under the Robinson-Patman Act is notsubject to appeal. Similarly unrelated to the issue at hand is the case of In Re International House of Pancakes Franchise Litigation, 536 F.2d 261 (8th Cir., 1976), involving a claim that denial of a motion to be excluded from an anti- 6/ And of course seventeen (17) of the members of the class affirmatively sought to be represented by plaintff Rule. 8 trust class action was an abuse of discretion, despite the fact that appellant willfully ignored the deadline for exclusion - the disregard of a clear deadline serving to provide the Court with a standard for the exercise of its discretion. Appropri ately, the denial was upheld. Defendant also cites the case of Philadelphia Housing Authority et al. v. American R&S Corp0, 323 F. Supp. 364 (E.D. Penn., 1970). However, that case involved a dispute over whether an appropriate class should have been determined before settlement was proposed. The "wide discretion" granted the judge under Rule 23 resulted in the original procedures being upheld but the case again has no relevance to a Title VII action, against which a judge's Rule 23 discretion "must be balanced with the nature and intent of the Civil Rights Acts, whose purpose is to provide a broad remedy for all who fit the plaintiff's class." Carey v. Greyhound Bus Co., Inc., supra at 1380. Even more inappropriate is defendant's citation of Wilcox v. Commerce Bank. 474 F.2d 336 (10th Cir., 1973), which involved a denial of class status in an action under the Truth in Lending Act, the Court observing that "nothing in the Truth in Lending Act . . . . suggests a Congressional intent that such cases should always, or generally, be handled as class action." Both the courts and Congress have recognized the class action as an appropriate vehicle for challenges to discriminatory employment practices. See e:.c[. Albemarle Paper Co. v. Moody, supra, 422 U.S. at 414 n. 8 and Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 250 (3rd Cir., 1975). 9 In summary, discrimination on the basis of race is indubitably a class wrong. Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974); Wetzel v. Liberty Mutual Insura nce Co., supra, and a suit charging employment discrimination is naturally "a sort of class action for fellow employees sim ilarly situated." Rodriqez v. East Texas Motor Freight. 505 F.2d 40, 50 (5th Cir. 1974). Thus, this case presents the instance postulated in Wilcox where "the class action procedure is so manifestly superior . . . that an appellate Court on review would be warranted in reversing the trial court's deter mination to the contrary." Wilcox v. Commerce Bank, supra at 348; Manning v. International Union, 466 F.2d 812 (6th Cir. 1972) cert. denied 410 U.S. 946. III. THE DISTRICT COURT ERRED IN REFUSING TO ADMIT PLAINTIFFS1 EXHIBIT 26A The crux of defendants' argument apropos the exclusion of Exhibit 26A is that its disclosure of the exhibit was not voluntary but rather compulsory pursuant to Notice to Produce at Trial, and that the first opportunity defendants had to assert the attorney-client privilege in relation to Exhibit 26A was at the trial itself (Defendant's Brief at p. 23). Moreover, defendant argues that it "could not invoke the attorney-client privilege in regard to a document it refused to produce at 10 trial", and that it "had no choice" but to produce Exhibit 26A and object at trial (Defendants' Brief at p. 24). In so contending defendant fundamentally misconstrues the applicable law which is adequately set forth in plaintiffs' main brief. We add only that if the defendants wished to protect the pri vilege it was their obligation to object to the production of any allegedly privileged document prior to its delivery to plaintiffs. The district court would then have examined it in camera and ruled on the defendants' objections. By delivering the document to plaintiffs, without objection, any claim of privilege was waived. Underwater Storage, Inc., v. United States Rubber Co., 314 F. Supp. 546 (D.D.C. 1970); Puplan Corp. v. Peering Milliken, Inc., 397 F. Supp. 1146, 1162 (D.C.S.C. 1974); Sylgab Steel & Wire Corp. v. Imoco-Gateway Corp. 62 F.R.D. 454 (N.D. 111. 1974); and Arney v. Geo. A. Hormel & Co. 53 F.R.D. 179, 181 (D.C. Minn. 1971). IV. THE DISTRICT COURT ERRED IN REFUSING TO CONSIDER CERTAIN EVIDENCE CONTAINED IN THE GOVERNMENT'S CASE____________ In responding to plaintiffs' contention that the district court judge erred in refusing to admit into evidence certain portions of depositions and answers to interrogatories filed in Civil Action No. 71-C-559(2) defendant's state in a conclusory fashion that the evidence is inadmissible for lack of "total identity of parties in both 11 actions, no substantial identity of issues and common questions of law and fact." (Defendants' Brief at p. 26) Furthermore, defendants' assert that plaintiffs'have not met the standards set forth in their own cited cases. Defendants’ assertions rest on a fundamental lack of understanding of the applicable law. A. Evidence From The Government's Case Is Admissible Under Rules 26 (d) and 42 (a) F.R. Civ. P. Defendants acknowledge that the same underlying issue of unlawful racial discrimination is involved in both cases, (Appellees Brief at p. 26) yet attempt to distinguish the two actions on the ground that Civil Action No. 71-C-559(2) was brought by the United States pursuant to Section 707 of Title VII. While Sections 706 and 707 merely set forth separate jurisdictional cases for suits by private parties and the Government, the duties imposed on the defendants by Title VII are the same regardless of who is seeking to enforce them. 2/ The remedies available are also the same. Moreover, it is clear that "neither the form of the proceeding, the theory of the case, nor the nature of the relief needs to be the same" for evidence of a prior proceeding to be admissible in a subsequent proceeding. McCormick on Evidence §257, p. 201. Nor must the parties be identical. See Ikerd v. Lapworth, 7/ Of course, private plaintiffs but not the Government are entitled to attorneys' fees. - 12 - 435 F.2d 197 (7th Cir. 1970). It is generally recognized that the test of admissibility of prior recorded testimony is not "a mechanical one of identity or even substantial identity of issues," but rather that "the issues in the first proceeding must have been such that the party opponent had adequate notice for testing the credibility of the testimony" sought to be admitted in the present proceeding. McCormick on Evidence, §257, p. 261; 5 Wigmore, Evidence, 3d Ed. 1940 §1388; See Fullerform Continuous Pipe Corp. v . American Pipe Construction Co., 44 F.R.D. 453 (D. Ariz. 1968). Clearly, defendants had the same motive and interest to cross- examine the deponents in the prior proceeding as they had in the present action. In both No. 71-C-559(2) and this case, plaintiffs alleged an across-the-board pattern and practice 8/ of racial discrimination; in both actions the defendants have the same primary interest — disproving the existence of racial discrimination. Compare Fullerform Continuous Pipe Corp. v. American Pipe & Construction Co., supra. Even assuming that different issues of law are present in this case than in the previous proceeding, clearly this assertion is immaterial since Rule 42 (a) merely requires a substantial identity of either law or fact. See Baldwin-Montrose Chemical 8/ In this case plaintiffs also alleged and proved specific unlawful discrimination. (See Plaintiffs' Brief at pp. 43-64). 13 Co v. Rothberq. 37 F.R.D. 354, 356 (S.D. N.Y. 1964). Assuming further, as the defendants erroneously appear to, that this case is limited to "instances of specific discrim ination" a substantial identity of fact is present here be cause many of the instances of discrimination about which plaintiffs complain are the result of those same broad discriminatory patterns and practices. See Plaintiffs Brief at pp. 43-59. Defendants further contend that the defendant MTP was not a party to the prior proceeding, and that counsel for defendants had no motive or interest in that proceeding adequately to protect MTP's interest. This assertion dis regards the fact that the parties in the Government's case had no difficulty imposing substantial affirmative responsibilit ies on the MTP even though it was not a named party (Tr. 334). (A. 798) As this result indicates MTP's interest must necessarily have been of concern to defendants' and MTP's interest in cross-examination was the same as the parties' interest who were present in that action, since the identical issue of racially discriminatory practices was raised. Thus, although it is generally the rule that a deposition is not admissible as to one not having the opportunity to be present at its taking, the presence of an adversary with the same motive and interest to cross-examine the deponent, and a substantial identity of issues in the two proceedings, provide 14 a well-recognized exception to the rule. See Ikerd v. Lapworth. 435 F.2d 197 (7th Cir. 1970). As is the case here, the party in the present proceeding in Fullerform Continuous Pipe Corn. v. American Pipe & Construction Co., supra, was not present to cross-examine the deponents at the prior proceeding, but the substantial identity of issues and fact as well as the abundance of motive and interest possessed by defendants to cross-examine the deponents, provide the guarantee of trust worthiness sufficient to warrant admission of the relevant portions of the prior testimony. The result in Fullerform, supra should compel a similar finding here and thus the district court here erred in refusing to recognize that Rules 26 (d) and 4 2 (a) when taken together authorize the use of the depositions and interrogatories offered by plaintiffs without a showing that the witnesses were unavailable. See Guerrino v . Ohio Casualty Insurance Co., 423 F.2d 419, 421 (3d Cir. 1970); Fullerform Continuous Pipe Corp. v. American Pipe & Construction Co., supra; Baldwin-Montrose Chemical Co. v. Rothberg, supra, at 356. In any event, the evidence in the Government's case offered by plaintiffs in this case primarily addresses the discriminatory practices of Local 396 and JAC, and not the MTP. Thus, even if not admissible as to the MTP the evidence in the Governments case remains admissible as to the other defendants. Defendants further assert that although plaintiffs base 15 their argument on Rule 26(d) and 42 (a) F.R.C.P., the "answer actually is found in Rule 32 (a) (3) of the Federal Rules of Civil Procedure, which sets out the requirements for the use of the deposition of a witness at trial" (Defendants' Brief at p. 26). Although defendants blithely ignore those decis ions, cited supra, which hold that availability of a witness is immaterial under Rules 26(d) and 4 2 (a) taken together, it is clear for yet another reason that Rule 32(a) (3) is inapplicable. B. Evidence From The Government's Case Is Admissible Under Rule 801 (d) (2), Federal Rules of Evidence It is clear that defendants Local 396 and JAC were parties in No. 71-C-559(2) as well as in the present case. Defendants entered into a consent order with the United States Department of Justice in No. 71-C-559(2), based in part on an implied admission of the facts outlined in the depositions and answers to interrogatories. These admissions were made by ranking officials of Local 396, JAC or the MTP acting their capacity as agents of those entities. (See Plaintiff's Brief at n. 66) Hence these depositions fall well within the para meters of admissibility set forth in 801 (d) (2), Fed. Rules 9/Evid., 28 U.S.C.A. 9/ Rule 801 (d)(2) provides: A statement is not hearsay if offered against a party and is A) his own statement, in either his individual or a representative capacity or B) a statement of which he has (CONT'D) 16 And such evidence is receivable whether or not the declarant is available or appears as a witness. See Weinstein1s Evidence, 5 8 OI (d) (2) [01] at p. 801-115. Thus, the court below may have erred in accepting defend ants’ characterization of the admissions of the parties as prior recorded testimony. The admissions of a party-opponent are ex cluded from the category of hearsay, on the theory that the admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule." Notes of Advisory Committee on Proposed Rules, Fed. Rules Evid., Rule 801 (d) (2), 28 U.S.C.A.; McCormick, Evidence, §262, p. 629. The decision by the court below flies in the face of the intent of the drafters of Rule 801 (d) (2), who contemplated "generous treatment of this avenue of admissibility," Id. Moreover, an analysis of the applicability of Rule 801(d) (1) (A) indicates even more strongly that the depositions and answers to interrogatories from No. 71-C-559(2) should not have been excluded from evidence. Applying that Rule to the instant case, even if the deponents had all appeared at the 9/ (CONT'D) manifested his adoption or belief in its truth, or C) a state ment by a person authorized by him to make a statement concern ing the subject, or D) a statement by his agent or servant concerning a matter within the scope of his authority or employ ment, made during the existence of the relationship. Pub. L. 93-595 §1, Jan. 2, 1975, 88 Stat. 1938. -17- subsequent proceeding and has been subject to cross-examina tion, the import and relevance of the deposition for their substantive value would not be diminished. If the deponents on cross-examination had offered testimony- inconsistent with their deposition (or even consistent), the statement in the deposition would still be admissible as substantive evidence, since under Rule 801(d) (1)(a) it would not be hearsay. In the face of the strong federal policy manifested in the rules favoring the admissibility of depositions as admissions under Rule 801(d)(1)(2) and as prior recorded testimony under Rules 26(d) and 42(a) F.R.Civ. P. conjoined, defendants' assertion of authority to the effect that dep ositions are to be disfavored as evidence deserves little credence. In the cases cited by defendants, the depositions either were not taken under circumstances affording an opportunity for cross-examination, or were based on a trial involving different issues, or were "obviously based upon hearsay and rumor," See United States v. Empire Gas Corp., 393 F. Supp. 903 (W.D. Mo., 1975); Napier v. Bossard, 102 F.2d 467 (2nd Cir. 1939); Salsman v. Witt, 466 F.2d 76 (10th Cir. 1972). Those obvious infirmities clearly do not obtain here. The court below committed error in excluding the depositions from evidence. - 18 Finally, we note defendants implicit concession that the depositions and interrogatories in the Governments case are judicially noticeable in this case. V. THE DISTRICT COURTS' REFUSAL TO FIND THE DEFENDANTS TO HAVE VIOLATED THE TITLE VII AND SECTION 1981 RIGHTS OF THE NAMED PLAINTIFFS WAS ERROR______ The defendants do not appear to challenge, except in conclusory fashion, the pervasive pattern of unlawful racial discrimination disclosed in this record and summarized in plaintiffs main brief. They assert that plaintiffs "have relied exclusively on statistics as their source of proof that defendants have engaged in racial discrimination" (emphasis added) (Def. Br. at p. 28). While plaintiffs do 10/rely on statistics, this record is replete with non-statis- tical evidence of unlawful racial discrimination against blacks seeking entrance into the trade and against the 10/ See e.g., Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970)? United States v. Hayes International Corp., 456 F.2d 112,. 120 (5th Cir. 1972) and Sagers v. Yellow Freight System Inc., 529 F.2d 721, 729 (5th Cir. 1976) as to the use of statistics in establishing a prima facie case of unlawful racial discrimination as to named plaintiffs in a Title VII class action. See also Resendis v. Lee Way Motor Freight, Inc., 505 F.2d 69 (5th Cir. 1974); Marquez v. Omaha Distr. Sales Office, Ford Div., 440 F.2d 1157 (8th Cir. 1971) as to the application of statistics in individual cases. - 19 ] plaintiffs individually. That evidence includes application of a discriminatory high school diploma requirement to plaintiff Rule; 2) application of unlawful tests to plaintiffs Coe and Vanderson; 3) refusal to issue service dues receipts to plaintiffs Rule, West and Nichols even though the Union had issued such service dues receipt to whites having no greater qualification; 4) application of the letter agreement to plaintiff Rule;and 5) the outright refusal to even talk to plaintiff West when he first sought referral. "The reasons relating to the insistence of the Union for a referral system" (Def. Br. at p. 30) is plain enough - it wanted to preserve job security for its older members. (See Johnson depo. at p. 87) (A.HO). Its effect was to deprive previous ly excluded blacks, including plaintiff Rule (See PI. Br. at p. 32), of the opportunity to find work in the trade. Given the undisputed proof in this record of the effects of the new referral system on plaintiff Rule, the defendants statement at page 31 of their brief that "plaintiffs are unable to adduce a shred of evidence disclosing that any harm resulted to them by reason of the institution of the referral provis ions contained in the 1972 agreement" is mere brutum fiiinm. At page 31 of their brief defendants suggest that plaintiffs seek to prohibit the coordinators of JAC and the MTP from referring trainees and apprentices. Nothing is 20 further from the fact. Plaintiffs merely seek establishment of a procedure that would assure trainees and apprentices an equal share of referrals. The coordinators of both programs would continue to solicit. They would merely be required to assure that trainees receive a fair share of all referrals. The defendants continue to argue that the Flanigan test passes muster under Title VII because EEOC has registered no protest as to its use. (Def. Br. at p. 32). The Consent Decree prohibits use of any tests "unless the test has been properly differentially validated. . ." (Consent Decree at ?8). JAC has never differentially validated the Flanigan test. True, JAC informed EEOC of its intention to rein troduce the test but JAC never complied with the precondit ion of having the Flanigan "properly differentially validated" and never submitted any validity study as required by the Consent Decree (Consent Decree 5[8) (A. 447) . JAC's reliance on its self-serving letter to EEOC is much too thin a reed on which to base a claim for an exemption from the requirements of Title VII. The defendants have said nothing in their briefs as to u / the claims of plaintiffs Davis and Nichols and Rule not fully 11/ Defendants' assertion at page 35 of their brief that plaintiff Rule was unavailable for any contact by the Union or JAC between 1966 and 1972 is refuted by their own description of his whereabouts. (See Def. Br. at p. 17). (CONT'D) 21 anticipated in plaintiffs main brief or that warrant reemphasis here. The claims of and entitlement to relief of plaintiffs Coe, Vanderson, Brown, and West are adequately discussed there as well. However out of an abundance of caution plaintiffs add the following comments addressed to certain factual or legal assertions made as to them. A. George Coe It serves JAC little to point out that plaintiff Coe was afforded the opportunity to be reconsidered in 1971. (Def. Br. at p. 32). Coe was unlawfully excluded from JAC in 1970. See Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970) . JAC1s offer to subject him to the same discriminatory selection procedures in 1971 is 12/ hardly a remedy. B . Lonnie R. Vanderson It appears that plaintiff Vanderson was in fact denied admission to JAC (See Def. Br. at p. 33) because of the unlawful JAC selection procedures. Defendants misconstrue 11/ (CONT'D) He was in St. Louis for all but one year during that entire period. Whether or not he was available for contact would not shield the Union or JAC from liability in any event because they never made any attempt to reach him. 12/ The defendants' statement without citation to the record that JAC indentured 8 or 9 blacks in 1970 (Def. Br. at p. 32)may be inaccurate. Charles Adam, the JAC coordinator testified (CONT'D) - 22 the proper allocation of the burden of proof at this point. It is JAC's burden to demonstrate by clear and convincing evidence that plaintiff Vanderson would not have been admitted to JAC even in the absence of these unlawful selection procedures. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 259 (5th Cir. 1974), and Franks v. Bowman Transportation Co., 424 U.S. 747, 772 (1976). JAC failed to meet its burden. Accordingly Vanderson is entitled to a remedy. C. Johnnie I. Brown The defendants assert that plaintiff Brown "offered no evidence that persons equally lacking in skills were referred by Local 396. . ." (Def. Br. at p. 34). The record is filled with evidence of the Union issuing service dues receipts to who were no more qualified for ironwork than plaintiff (Tr. 197, 394, 605-06). (A. 661, 858, 1068). students 13/ Brown. 12/ (CONT'D) that just 2 of the 80 individuals indentured into JAC in 1970 were black (Tr. 611) (A. ). However, the JAC Admission No. 39 shows 84 whites and 8 blacks indentured that year. (A. 80 ). 13/ The following testimony in the Government case by Herman McGowan, former Business Agent for Local 396 clearly demonstrates that lack of qualification was no impediment to obtaining a "permit" for„ the privileged: Q. (By Mr. Cronin) While you have been Business Agent, have summer employees ever been put to work by the union, temporary employees? A * Yes* (CONTINUED) 23 (A. ). The defendants cite to Marquez v . Omaha Distr. Sales Office. Ford Div.. 440 F.2d 1157 (8th Cir. 1971) is inapposite in the circumstances of this case. Clearly Title VII does not require the union to issue permits to or refer persons who are unqualified, see Marquez. supra, but the Union may not use qualifications standards to exclude minorities where it has not, as here, consistently applied those same standards to whites. See Franks v. Bowman Transportation Co., supra, 424 U.S. at 773, n. 32. D. Willie West Defendants ignore the district court's finding that plaintiff West applied in 1969. His subsequent refusal years later to enter the MTP or accept the opportunity for Union membership is irrelevant to the issue of liability. See Parham, supra. 13/ (CONT'D) * * * * Q. Before you were Business Agent, was the same practice prevalent then too? A. About five years ago I was running a job and my son was out of school and I had him work two weeks for me. That is the only time he ever ironworked. (Emphasis added). (McGowan Depo. at pp. 122-23). (A. 408-409). 24 Defendants also assert that because plaintiff West was singled out for certain relief in the Consent Decree, he is in privity with the United States and therefore is not entitled to relief here. In support they cite two cases; neither is applicable. Cromwell v. County of Sac, 94 U.S. 351 was premised on a finding the former suit was brought for the sole use and benefit of the plaintiff in the later suit. This suit was brought under Section 706 of Title VII of the Civil Rights Act of 1964, as amended to vindicate personal rights guaranteed to plaintiff West thereunder. The Government sued under Section 707 to vindicate the broad public interest in eliminating unlawful practices. See United States v. Alleqhenv-Ludlum Industries, Inc., 517 F.2d 826, 843 (5th Cir. 1975). Thus the Government sought to vindicate interests different from those of the plaintiffs. Unlike Miller v. Meinhard Commercial Corp., 462 F.2d 358 (5th Cir. 1972) , a bankruptcy case, plaintiff West was not a part to any of the proceedings in the Government's case. Indeed they never received any notice prior to the entry of the Consent Decree that his rights were being compromised. He never accepted the minimal relief offered thereunder and certainly did not sign any waiver of his rights. 25 VI. DEFENDANTS' VIOLATION OF THE CONCILIATION AGREEMENT Defendants' violations of the MCHR Conciliation Agreement and plaintiffs' entitlement to enforcement in federal court is adequately set forth in plaintiffs main brief. More than ten years have elapsed since plaintiff Ronald Rule was denied the right to find a job in the St. Louis ironwork trade. In the intervening years the defendants have evaded or defied the clear mandate of the law and as a result he and other similarly situated blacks, including those that are named plaintiffs here, have suffered from its effects. Not until late 1973 did the defendants take the first halting steps to remedy the effects of their violations of the law. To this day, a full remedy has not been achieved and the district court has failed to provide one. See Albemarle Paper Co. v. Moody, supra. This Court must at last assure plain tiffs and similarly situated blacks their remedy. VII CONCLUSION Respectfully submitted Gilden & Dodson 722 Chestnut Street St. Louis, Missouri 63101 26 JACK GREENBERG 0. PETER SHERWOOD 10 Columbus Circle Suite 2030 New York, New York 10019 ATTORNEYS FOR APPELLANTS CERTIFICATE OF SERVICE I hereby certify that on this day of March, 1977, I served a copy of the foregoing APPELLANTS' REPLY BRIEF upon counsel for defendants, Barry J. Levine, Esq., Gruenberg, Souders & Levine, 905 Chemical Building, 721 Olive Street, St. Louis, Missouri 63101, by United States Mail, Postage prepaid. 27 . - t • • ' r •